Dingley v. McDonald
Before: Pringle
Synopsis
Insolvent Bank—Deposit—Check for Dishonored Drafts—Payment. The amount oí a deposit in a hank which became insolvent, was not diminished by the amount oí checks drawn, for drafts which were dishonored, and returned to the bank, and for the amount of which the bank gave credit to the depositor. The drafts did not operate as payment of the checks, in the absence of an express agreement that they should so operate; and there was no payment of the checks which could withdraw the deposit.
Id.—Action against SiockHOLDERS—Evidence—Statement of Account. In an action against the stockholders of the bank to recover their respective shares of the deposit, where the amount of the deposit was proved independently of a statement of account signed by the manager of the bank, which statement was merely the restatement of what the bank-book showed after the credit therein of the amount of the checks given for the dishonored drafts, and after surrender of the bank-book to the bank, and where the bank-book was offered in evidence by both parties, such statement of account is admissible in evidence to rebut the presumption arising from the apparent reduction of the account by the amount of the checks prior to the subsequent credit thereof.
Id.—Estoppel of Defendants.—The defendants,having offered the bankbook in evidence, which contained the same statement of account when surrendered as that given in the restatement of accounts by the manager, cannot object to the competency of the restatement.
In.—Declaration of Manager after Insolvency—Control of Directors.-—The declaration of the manager of the bank after its insolvency, showing the state of the accounts, while the bank was still under the control of its directors, which did not purport to he the creation of a new indebtedness, but purported t.o be the statement of the old account, is as' potent to exhibit the true state of the account, after the protest and surrender of the drafts, as was tlje book before their protest.
Id.—Assignment of Cause of Action—Agency—Verbal Authority.— An assignment of a cause o-f action to recover the amount of a deposit in a bank, or the proportionate share thereof against the stockholders respectively, need not be in writing; and an assignment thereof may be made by an agent acting in the name of the principal upon verbal authority.
Id.—Statute of Limitations — Computation of Time—Exclusion of First Day.—In computing the statute of limitations for the commencement of such an action, the first day upon which the liability was created is to be excluded.
PRINGLE, C. This action is brought against stockholders of the Pacific Bank to recover the portions of the debts of the bank for which they are respectively liable as stockholders. Many claims are consolidated. But only in the case of two claims are questions presented on this appeal.
I. The complaint alleges that on the twenty-third day of June, 1893, there was on deposit in said bank belonging to and to the credit of H. D. Eowe, the assignor of the plaintiff, the sum of $4,891.01; that on said twenty-third day of June the bank closed its doors and suspended business. The answer denies that on the twenty-third day of June there was on deposit to the credit of Eowe any more than $228.25. The court finds that there was on deposit, as alleged in the complaint, the sum of $4,891.01. Appellant claims that the evidence is insufficient to justify the finding. The evidence shows that Eowe had that amount, $4,891.01, on deposit on the 17th of June; that on that day and on the 21st of June he drew two checks for drafts or bills of exchange by the Pacific Bank on the Rational Bank of Illinois at Chicago in favor of Charles A. Cap-well. These checks were charged against his account and reduced the account on the books to $228.25, the balance shown by his bank book on June 22d. The checks were not paid in money, but were given for the drafts. The drafts were refused payment, were protested and returned to Rowe, and by him surrendered to the Pacific Bank. The bank gave him credit on his bankbook for the amount of the checks which it had charged against him, restoring his credit account to $4,891.01. This credit was not entered on the bankbook until December 14, 1893.
• The appellant claims that by the issuance of the drafts payable to Capwell the bank assumed a liability to him different to [92]its liability to, Bowe for his original moneys on deposit; and that, whatever may be its liability on the drafts, it was not for moneys on deposit as charged in the complaint. But that is not of the substance of the transaction as between the bank and Bowe. Bowe had moneys on deposit with the bank. He instructed the bank to pay his moneys to Capwell in Chicago, and drew a check to appropriate moneys for such payment. The bank, by its draft upon Chicago, ordered payment to be made to Capwell, but the bank failed, payment was not made to Capwell, and the draft was protested and returned to the bank. This is the meaning of the transaction between Bowe and the bank, consisting of check and of draft protested and returned. There was no payment of the check which could withdraw Bowe’s deposit. The draft was not received in payment of the check. It is well settled that a note, even if if be the note of a third person,, or a bill of exchange in favor of another, does not operate as payment except by express agreement. The presumption is not in favor of its being received as payment. (Comptoir d'Escompte de Paris v. Dresbach, 78 Cal. 15, in which it was said that, when a check is given for payment of a debt, the giving of a receipt in full does not establish' an agreement for an absolute payment; Steinhart v. National Bank, 94 Cal. 362, 28 Am. St. Rep. 132, in which the original note was stamped as “canceled”; Savings etc. Soc. v. Burnett, 106 Cal. 516, where the old obligation was surrendered.)
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